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Financial disclosure in property cases

Information about when and how you must provide full and frank financial disclosure.

General duty of disclosure

If you and your ex-partner are following the pre-action procedures, you both have a general duty to provide full and frank disclosure of all information relevant to your case in a timely manner. This includes any documents that are:

  • in your possession or under your control, and
  • relevant to an issue in your case.

It is important that the information and documents you provide contains sufficient details for your ex-partner and the court to understand your complete financial circumstances. It is not enough to tell your ex-partner where to search for information or documents. If you don’t provide enough detailed information and documents, the court may find you have failed to provide full and frank financial disclosure.

You don’t have to provide your ex-partner with a copy of any documents that:

  • are privileged
  • that is no longer in your possession or control
  • you have already provided, as long as they haven’t been changed or marked in a way that is likely to affect the outcome of your case.

You must fulfil your duty when you begin the pre-action procedures. The duty continues until your case is finalised.

This general duty applies in both property and parenting cases.

To help you remember what documents and information you need to give to, or request from, your ex-partner, see Checklist: Financial disclosure documents and information (PDF 50kb).

Duty of full and frank financial disclosure

In addition to the general duty of disclosure, you and your ex-partner also have a further duty to provide full and frank disclosure of your financial circumstances. You must disclose your total direct and indirect financial circumstances.

If your case is heading to court, you must serve your ex-partner with a copy of:

  • your three most recent tax returns and notices of assessment
  • a completed superannuation information form for all superannuation accounts you have
  • if you have a self-managed superannuation fund – the trust deed and three most recent financial statements
  • if you have an Australian Business Number (ABN) – the last four business activity statements (BAS) you have lodged
  • the three most recent financial statements and the last four BAS lodged for any partnership, trust or company you have an interest in.

Income

You must disclose information about your income. This includes income that:

  • is paid to a related person or legal entity, for example, if you transfer part of your income to your family trust
  • that is earned by a legal entity that you own or control.

A legal entity is a:

  • corporation, other than a public company
  • trust
  • partnership
  • joint venture
  • business, or
  • other commercial activity.

Income is not treated as property for a property settlement.

Asset

You and your ex-partner must disclose information about the property that you own and have an interest in. This includes property that is owned by a legal entity, such as a business, that you own or control.

When making order, the court must consider all property that you and your ex-partner own. The court has a wide discretion to make orders regarding all of this property.

For more information about what property is, see Property, debts and financial resources.

Assets disposed of

You and your ex-partner must disclose any assets that you have disposed of in the 12 months before separation and since separation. This includes assets you have sold, transferred, assigned or gifted to someone else.

It doesn’t include any assets disposed of with the consent or knowledge of the other person, or in the ordinary course of business.

Financial resources

You and your ex-partner must disclose any financial resources that you have.

A financial resource is a source of financial support that you may be entitled to now, or in the future. It can include a future inheritance, or distributions from a family trust.

The court will consider your financial resources, income and earning capacity when deciding whether to make property orders.

For more information about what are financial resources, see Property, debts and financial resources.

Debts

You and your ex-partner must disclose any debts that you have incurred, in your name only, or jointly with another person. This includes mortgages, credit cards, personal loans, unpaid tax and utilities.

You must also disclose any debts that is you are owed, which may be treated as a property.

For more information, see Property, debts and financial resources.

Relevance

You only have to disclose, and can only request, information or documents that are relevant to an issue in your case.

Information or documents may be relevant to an issue if they ‘throw light’ on an issue or materially assist the court to decide an issue.

When making a request for disclosure, it is important that you only ask for information and documents that are relevant to the issues in your case. You can’t request additional information, regardless of whether it is relevant, simply because you would like it. There is a general expectation by the court that the disclosure process will only be used to identify relevant documents and not to conduct a fishing expedition.

Similarly, when providing disclosure, you should only provide the information and documents that are relevant to the issues in your case. You are not complying with your duty by dumping a large number of documents on your ex-partner, regardless of whether they are relevant, and leaving it up to them to sort through the documents.

How to request and provide disclosure

As soon as you begin the pre-action procedures, you must exchange with your ex-partner:

  • a schedule of assets, income and liabilities
  • a list of the documents you have in your possession that are relevant to the issues your case
  • a list of any documents you require your ex-partner to provide a copy of.

Use of disclosure

You can only use the information and documents you receive through the disclosure process for your case. You can’t share the information or documents you receive within anyone without the court’s permission.

The court can make orders limiting who can inspect documents if you are concerned about:

  • the extremely sensitive contents of a document – for example hospital notes or medical records
  • a real risk that a document would be used for an improper purpose.

Undertaking

If your case goes to court, you must file an Undertaking as to disclosure.

This undertaking states that:

If you sign an undertaking that you know, or should reasonably have known, is false or misleading, this is an offence. If you commit this offence, you can be fined.

If you breach your undertaking, you may be committing the offence of contempt of court. If you are found guilty of contempt of court, you can be:

  • given a bond
  • fined
  • sentenced to imprisonment.

The court may also make a costs order against you.

Failure to disclose documents or information

The duty of disclosure is necessary to ensure that any orders the court makes are just and equitable. The court must be able to determine you and your ex-partners true financial position, now and in the future, to make orders that are just and equitable. It may not be able to do this if you or your ex-partner don’t provide full and frank financial disclosure.

If you don’t comply with your duty, a court can:

  • set aside your consent orders
  • stay or dismiss all or part of your case
  • make a costs order against you
  • fine you
  • send you to gaol.

If you don’t disclose certain documents or information, and your case goes to a final hearing, the Court may not allow you to use it in your case. The Court may also adjust the property settlement in favour of your ex-partner, if they have provided full disclosure and you haven’t.

How the court responds to non-disclosure will depend on:

  • the degree of non-disclosure
  • the time when it was discovered
  • whether there is any doubt about the relevance of the information or document not disclosed.

For more information, see Duty of disclosure on the Federal Circuit and Family Court of Australia website.

Binding financial agreements

You don’t have a duty of disclosure if you and your ex-partner are negotiating a binding financial agreement. You also don’t have to comply with the pre-action procedures.

Even though the law doesn’t require you to provide full and frank financial disclosure when making a binding financial agreement, it is important that both parties disclose all relevant and current information about their financial circumstances. This is necessary to ensure that both parties can give their full and informed consent to the agreement. If you don’t provide full disclosure, there is a risk that your agreement can be challenged and set aside.  

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